IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Tuesday the 31st day of May, 2016
Filed on 18.8.2010
Present
1.Smt. Elizabeth George (President)
2.Sri. Antony Xavier (Member)
3.Smt.Jasmine.D. (Member)
in
C.C.No.189/2010
between
Complainants:- Opposite Parties:-
- Sri. R. Gopalakrishna Pillai 1. Sreekandapuram Hospital
Sreepadam, Praikkara Muri Kandiyoor, Mavelikara
Ward No.4 represented by its Director
Mavelikara (By Adv. K. Jayakumar)
- Sri. Majo Kumar 2. Dr. Indira, Gynecologist
S/o Gopalakrishna Pillai -do - Sreekandapuram Hospital
Kandiyoor, Mavelikara
- Smt. Mini, D/o -do- -do-
- Sri. Vinod, S/o -do- -do- 3. Dr. Linsa Saira Cherian
(By Adv. P.S. Sreeja for the complainants) Radiologist, -do-
4. Dr. Suresh George, -do-
5. Dr. Venugopal, Anesthetist
-do- -do-
(By Adv. P.T. Thomas – for
Opposite parties 2 to 5)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The first complainant is the husband of Smt. N. Santhamma who expired on 10.7.2010 and complainants 2 to 4 are their children. Santhamama was undergoing treatment at first opposite party hospital and she was treated there by 2nd opposite party for uterus related problems. The 2nd opposite party referred her to the third opposite party and 3rd opposite party done USG and after obtaining result of the USG the 2nd opposite party disclosed to the complainants that uterus of the Santhamma had to be removed immediately through a surgery. The surgery was done on 29.5.2009 by the 2nd opposite party. After the surgery she was discharged on 3.6.2009. Since she was suffering from breathlessness and also due to the physical uneasiness she was again admitted to the first opposite party hospital on 7.6.2009. The USG was again conducted and it was found that she was suffering from serious liver disease. Upon insistence of the 2nd complainant the opposite parties referred her Amritha Institute of Medical Science Hospital, Kochi. Thereafter she was admitted in AIMS on 8.6.2009 and found that the liver disease had attained the last stage of liver cirrhosis. Then also she was undergoing heavy medication as instructed by the doctors at AIMS and they also made it clear that she had to undergo lifelong medication and her condition was very critical due to the negligent diagnosis, treatment and surgery conducted by the opposite parties. From the date of discharge till her death on 10.7.2010, Santhamma had to be taken to AIMS each week for tapping the fluid collection in her abdomen (“Ascitic fluid tapping”) and for “Albumin Infusion”. She was totally bedridden from after the surgery at the first opposite party Hospital and she was unable even to attend her own physical affairs. After leading a miserable life full of pain and suffering as a result of the surgery and so called ‘treatment’ of the opposite parties, she passed away on 10.7.2010. It is respectfully submitted that chronic liver disease of Santhamma was very much worsened and aggravated due to the Anesthesia given and uterus surgery (Hysterectomy) done upon her by the opposite parties most irresponsibly and negligently. Owing to the above said illegal act of the opposite parties the complainants suffered severe mental agony, heavy financial loss and irreparable injury and hardships for which the opposite parties are liable to compensate the complainants to the tune of Rs.9,50,000/-. Alleging deficiency in service on the part of the opposite parties, the complaint is filed.
2. The version of the first opposite party is as follows:-
The patient came to the first opposite party hospital on 12.5.2009 and 2nd opposite party advised an abdominal and pelvic USG. The second opposite party had conducted a detailed and thorough examination and routine laboratory investigations and anesthetic evaluation were advised. In the pre-operative investigations and anesthetic evaluation she was found fit for surgery and 2nd opposite party conducted vaginal hysterectomy under spinal anesthesia on 29.2.2009. She remained table throughout the post operative period and was discharged on 3.6.2009. On 7.6.2009 the patient reported back to the hospital with the complaint of breathlessness and abdominal distension. The 4th opposite party had done the USG on 8.6.2009 and based on the findings in the scan report, she was referred to AIMS for further evaluation. The patient on pre-operative evaluation also did not have any complaint suggestive of liver disease and at the time of sonlogical examination by the 3rd opposite party there were no impressions or indications suggestive of liver disease. On 12.5.2009 there was no sign of portal hypertension and portal vein and speenic span were found within normal limits during sonlogical examination there is no negligence or deficiency in service on the part of the above opposite parties at any point of time in the diagnosis and treatment of the patient and hence they are not liable to compensate the complainants. The patient was advised elective surgery based on USG dated 12.5.2009 on her own volition. The 2nd opposite party had exercised utmost care and caution in conducting the vaginal hysterectomy and the patient did not develop any complication in connection with the surgery. The patient had developed abdominal distensions only on 7.6.2009 and had no connection with the vaginal hysterectomy done on 29.5.2009. The opposite parties had diagnosed her diseased condition and refer to higher centre or its expertise management. The allegation that doctors at AIMS made it clear that her condition was very critical due to negligent diagnosis treatment and surgery conducted by the opposite party is highly ill-motivated. The allegation that liver disease very much worsened and aggravated due to anesthesia given and the uterus surgery done by the opposite parties were most irresponsibly and negligently unsustainable. The patient had undergone prolonged treatment for liver disease and succumbled to death by one year after its diagnosis. The opposite parties are not liable to compensate the complainants on the obvious reason that in the treatment of the patient they had acted in accordance with a practice proper and acceptable to medical science with utmost care and caution as expected from reasonable and qualified medical practitioners. The opposite parties 2 to 5 filed version adopting the same contentions of the first opposite party.
3. The first complainant was examined as PW1. Two witnesses were examined as PW2 and PW3. The documents produced were marked as Exts.A1 to A8. The opposite party was examined as RW1. Two witnesses were examined as RW2 and RW3. One document produced were marked as Exts.B1series.
4. The points that arose for consideration are as follows:-
1) Whether there is any deficiency in service on the side of the opposite parties?
2) If so the reliefs and costs?
5. The first omplainant’s wife Santhamma was undergone treatment at first opposite party hospital. The USG of Santhamma was done on 12.5.2009 by the 3rd opposite party at the Scanning Centre of first opposite party. Thereafter she was admitted to the first opposite party hospital on 28.5.2009 and surgery was done on her on 29.5.2009 by the 2nd opposite party and was discharged on 3.6.2009. Due to breathlessness and physical uneasiness she was again admitted to the hospital on 7.6.2009. USG was done on 8.6.2009 and was found that she was suffering from liver disease and was referred to Amritha Institute of Medical Science (AIMS) she was admitted in AIMS on 8.6.2009. She continued the treatment there and on 10.7.2010 she passed away. The main allegation of the complainant is that the chronic liver disease of Santhamma was very much worsened and aggravated due to anesthesia given and uterus surgery done upon her by the opposite parties most irresponsibly and negligently. According to the opposite parties, the patient was referred from Ex-service Contributory Health Scheme Hospital for conducting hysterectomy for the diagnosed prolapsed uterus. The 3rd opposite party had done USG and report showed Cholelithiasis and small sub-serous fibroid and since she was fit for surgery, 2nd opposite party conducted vaginal hysterectomy under spinal anesthesia on 24.5.2009 and was discharged on 3.6.2009. They further contended that they had exercised due care and caution in diagnosis and treatment by way of vaginal hysterectomy under spinal anesthesia.
6. First complainant was cross examined as PW1. While cross examining him, he admitted that the patient was referred from the (Ex-service contributing Health Scheme Hospital (ECHS) Gynecology doctor. Hence they consulted with the Gynecologist, the 2nd opposite party. Ext.A2 is the Scan report dated 12.5.2009 of the patient taken by the 3rd opposite party. It did not show sign of liver disease. While cross examining Dr. Sivaprasad.B., the Asst. Prof. of Gastro Enterology, AIMS as a witness, he also categorically stated the Ext.A2 shows the patient’s .liver is normal. After seeing Ext.A3 the scan report dated 8.6.2009 he stated that it shows that patient suffering from liver cirrhosis. According to him within the period, the period of 26 days the cirrhosis will not see like this. It is pertinent to see that the 2nd opposite party has no knowledge of the liver disease of the patient at the time of operation. As per Ext.A2 the patient has no symptoms of liver disease. Ext.A2 is the abdominal and pelvic USG. While cross examining PW3 he categorically stated that, “Uterus operation-\p Hcp tcmKnsb scan sN¿p¶Xv pelvic scanning BWv .” As per the Ext.A2 report, A sub-serous fibroid 3x2 cm. seen at fundal and region of uterus and hysterectomy operation was done by 2nd opposite party. While cross examining RW2 the expert witness of opposite party, he stated that, “Ultra Sound Scanning Aà liver cirrhosis Ip]nSnbv¡m\pÅ D]m[n.” He again answered to the question put by the learned counsel of the complainant. “Normal size- liver DÅ Hcp patient-\p aäp symptoms H¶pw ImWn¨nsæn liver cirrhosis F¶v ]dbm³ ]äptam?” “km[n¡nÃ.”
7. The evidence adduced in this case clearly shows that the patient was subjected to all necessary tests including scanning before deciding to conduct the operation. The witness examined also stated that the scanning conducted revealed that the liver was normal with scanning 26 days before. Hence the decision to conduct the surgery was taken after all medical examinations and there was no trace of any doubt about the liver cirrhosis. Hence the patient was fit for conducting the operation as per the medical test conducted just before the operation. As such there is no negligence from the part of the 2nd opposite party in deciding to conduct the operation. Hence from the evidence on record, it is difficult to say that the 3rd opposite party as well as the 2nd opposite party did not exercise due care and caution and responsibility nor any reasonable medical skill in diagnosing, and check-ups, medical tests and other procedure. What constitutes medical negligence is now well established through a catena of judgments. The Hon’ble Supreme Court in Jacob Mathew V. State of Punjab, III (2005) CCR 9 (SC) = VI (2005) SLT1 = III (2005) CPJ 9 (SC) =122 (2005) CPJ 9 (SC) = 122 (2005) DLT 83 (SC) = (2005) 6 SCC1, has observed as follows:-
“(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam case, WLR at p.586 holds good in its applicability in India.”
In the instant case, it can be seen that there is no evidence to conclude that opposite parties did not have necessary qualifications or that they did not exercise reasonable competence and skills in dealing with the case.
In the result, complaint is dismissed.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the day 31st day of May, 2016.
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - R. Gopalikrishna Pillai (Witness)
PW2 - Dr. Sivaprasad. B. (Witness)
PW3 - Dr. Sreekumar. K.P. (Witness)
Ext.A1 - True copy of the death certificate
Ext.A2 - Abdominal and Pelvic USG report dated 12.5.2009
Ext.A3 - Abdominal and Pelvic USG report dated 8.6.2009
Ext.A4 - Discharge card
Ext.A5 - Discharge summary
Ext.A6 - Microscopy and Diagnosis report
Ext.A7 series - Treatment and prescriptions (48 Nos.)
Ext.A8 series - Ultrasound of abdomen report dated 5.7.2010 (2 Nos.)
Evidence of the opposite parties:-
RW1 - Dr. Linsa Saira Cherian (Witness)
RW2 - Dr. K. Sudheer (Witness)
RW3 - Dr. K.R. Vinayakumar (Witness)
Ext.B1 series - Patient record file of Santhamma
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-
